In The Matter of the Organic Law on National and Local-Level Government Elections and A Petition Disputing the Validity of the Election for the Seat of Western Highlands Provincial in the 2007 General Election; Paias Wingti v Kala Rawali, Provincial Returning Officer, Electoral Commission of Papua New Guinea and Tom Olga (2008) N3285

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 23 January 2008
• Court: National Court
• Citation: (2008) N3285
• Docket Number: EP NO 55 0F 2007
• Year: 2008
• Judgement Number: N3285

Full Title: EP NO 55 0F 2007; In The Matter of the Organic Law on National and Local-Level Government Elections and A Petition Disputing the Validity of the Election for the Seat of Western Highlands Provincial in the 2007 General Election; Paias Wingti v Kala Rawali, Provincial Returning Officer, Electoral Commission of Papua New Guinea and Tom Olga (2008) N3285

National Court: Cannings J

Judgment Delivered: 23 January 2008

N3285

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO 55 0F 2007

IN THE MATTER OF THE ORGANIC LAW

ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

AND A PETITION DISPUTING THE VALIDITY OF THE ELECTION FOR THE SEAT OF WESTERN HIGHLANDS PROVINCIAL IN THE 2007 GENERAL ELECTION

PAIAS WINGTI

Petitioner

V

KALA RAWALI, PROVINCIAL RETURNING OFFICER

First Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Second Respondent

TOM OLGA

Third Respondent

Mt Hagen: Cannings J

2008: 21, 22, 23 January

RULINGS

ELECTIONS – petitions – amendment – circumstances in which a petitioner requires leave of the court to amend a petition – withdrawal of grounds – whether leave should be granted to withdraw a ground of a petition.

ELECTIONS – petitions – whether a respondent to a petition against whom no allegations are made in the petition, can object to competency of the petition.

ELECTIONS – petitions – objection to competency of petition – whether grounds relied on in petition adequately pleaded facts and grounds relied on.

ELECTIONS – petitions – whether a respondent to a petition against whom no allegations are made in the petition, should be allowed to be involved in the trial of the petition.

An unsuccessful candidate challenged the result of an election to the National Parliament by filing an election petition containing three grounds. He joined the provincial returning officer and the Electoral Commission as first and second respondents and the elected member as third respondent. The third respondent filed an objection to competency of the petition. The petitioner responded by filing two applications: that the third respondent be prevented from prosecuting the objection to competency and that the third respondent not be involved in the trial of the petition, as no allegations of impropriety are made against him and the Organic Law prohibits more than one counsel acting for a party. During the course of the hearing of those matters, the petitioner sought leave to withdraw the third ground of the petition. The court heard submissions on the four applications together (the third respondent’s objection to competency plus the petitioner’s three applications). This is a ruling on the four applications, dealt with in this order: (1) the petitioner’s application for leave to withdraw a ground of the petition; (2) the petitioner’s application to prevent the third respondent prosecuting the objection to competency; (3) the objection to competency; and (4) the petitioner’s application to prevent the third respondent being involved in the trial of the petition.

Held:

(1) Withdrawal of a ground of a petition is not an amendment to the petition. There are no improper reasons for withdrawing the ground of the petition. The petitioner’s application for leave to withdraw a ground of the petition is granted.

(2) The principles of natural justice are an integral part of the underlying law of Papua New Guinea, the minimum requirement of which, expressly recognised by Section 59 of the Constitution, is: “the duty to act fairly, and, in principle, to be seen to act fairly”. The elected member has a direct interest in this matter, whatever the outcome. Therefore the petitioner’s application to prevent the third respondent prosecuting the objection to competency is refused.

(3) It is important, indeed critical, in view of the Supreme Court decisions in Delba Biri v Bill Ninkama [1982] PNGLR 342 and Holloway v Ivarato [1998] PNGLR 99 that the requirements of Section 208 must be strictly complied with and that the facts relied on by the petitioner be clearly set out. The allegations made in the two remaining grounds of the petition are clear. The objection to competency is dismissed.

(4) The elected member is a party and has a right to be heard and has already been given leave under Section 222(1) to be represented by counsel. The petitioner’s application to prevent him being involved in the trial of the petition is refused.

Cases cited:

Delba Biri v Bill Ninkama [1982] PNGLR 342

Holloway v Ivarato [1998] PNGLR 99

Jimson Sauk v Don Pomb Polye and Electoral Commission (2004) SC769

Kamma v Itanu, Electoral Commission and Laimo EP No 11 of 2007, 05.12.07

APPLICATIONS

This is a ruling on four applications made prior to the hearing of an election petition.

Counsel:

A Manase, for the Petitioner

A Kongri, for the first and second Respondents

H Nii, for the third Respondent

23 January, 2008

1. CANNINGS J: Mr Tom Olga was elected as the Member for Western Highlands Provincial in the 2007 general election. The result was declared on 7 August 2007. Mr Paias Wingti was the first runner-up. He polled 137,981 votes, compared to Mr Olga’s 141,286, thus losing by 3,305 votes.

THE PETITION

2. On 14 September 2007, Mr Wingti filed a petition challenging the result of the election on three grounds:

· Ground No 1: errors and omissions by electoral officials resulting in the failure to count five ballot boxes containing about 3,181 votes.

· Ground No 2: illegal or improper practices by electoral officials and security personnel that resulted in Mr Olga’s tally being inflated by about 5,000 votes.

· Ground No 3: irregular and improper practices by electoral officials and scrutineers for some candidates that resulted in about 2,000 votes cast for Mr Wingti being allocated to Mr Olga or the second runner-up, Mr Wai Rapa.

3. The petitioner, Mr Wingti, named three parties as respondents:

· Mr Kala Rawali, the provincial returning officer, first respondent;

· the Electoral Commission, second respondent; and

· Mr Olga, third respondent.

4. The petition has passed through the normal pre-trial processes over the last few months. Directions hearings and a pre-trial conference have been conducted and last week in Waigani a status conference was conducted by the Judge Administrator, Sevua J, who confirmed the hearing date for the trial as 21 January 2008. The court convened on the appointed day and spent two days hearing four preliminary matters, which arose in the following way.

FOUR APPLICATIONS

5. In November 2007, Mr Olga filed an objection to competency of the petition, asserting that each of the three grounds of the petition and the whole petition is defective and should be dismissed.

6. Also in November 2007, Mr Wingti filed an application that Mr Olga should be prevented from prosecuting the objection to competency, on the ground that no allegations of impropriety are made against Mr Olga; the allegations being only against the returning officer and the Electoral Commission.

7. In January 2008, Mr Wingti filed another application seeking orders that Mr Olga should not be involved in the trial of the petition at all, as no allegations of impropriety are made against him and the Organic Law prohibits more than one counsel acting for a party.

8. During the hearing of those three applications, Mr Wingti made another application, this time seeking leave to withdraw the third ground of the petition.

ISSUES

9. The court heard submissions on the four applications together (the third respondent’s objection to competency plus the petitioner’s three applications). This is a ruling on the four applications which are dealt with in this order:

1 should the petitioner, Mr Wingti, be granted leave to withdraw the third ground of the petition?

2 should Mr Olga be prevented from prosecuting the objection to competency?

3 should the objection to competency of the petition be granted, in whole or in part?

4 should Mr Olga be prevented from being involved in the trial of the petition.

1 SHOULD THE PETITIONER, MR WINGTI, BE GRANTED LEAVE TO WITHDRAW THE THIRD GROUND OF THE PETITION?

10. Mr Nii, for Mr Olga, submitted that leave should be refused for two reasons. First, Mr Wingti was, in effect, seeking leave to amend his petition and amendments are not permitted more than 40 days after the declaration of an election result. Secondly, Mr Wingti wanted to withdraw the ground for dubious tactical reasons.

Is withdrawal of a ground an amendment?

11. The 40-day time limit for amending a petition comes from Section 208(e) of the Organic Law on National and Local-level Government Elections and from the decision of the Supreme Court in Delba Biri v Bill Ninkama [1982] PNGLR 342.

12. Section 208(e) says that a petition must be filed within 40 days after the declaration of the result of the election. In Biri v Ninkama, the Supreme Court (Kidu CJ, Kapi DCJ, Andrew J), when giving an opinion on constitutional questions referred to it by the National Court under Section 18 of the Constitution held that the National Court has no power to allow amendment of a petition after expiration of the time limit for filing the petition.

13. At first glance it would seem logical to regard the withdrawal of a ground as an amendment to the petition. Omitting a ground changes the text of a petition. Literally, it would be an amendment within the ordinary meaning of that word. However, when it is considered that the interpretation of the Organic Law in Biri v Ninkama was given in the context of answering a...